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And I cherish more than anything else the Analogies, my most
trustworthy masters. 1hey know all the secrets o Nature, and they
ought to be least neglected.
- Johannes Kepler
89 8(67/*5%6'/(
Analogy plays a central role in legal reasoning, yet how to analogize is
poorly taught and poorly practiced. \e all recognize when legal analogies are
being made: when a law proessor suggests a diicult hypothetical in class and
a student tentatiely guesses at the answer based on the cases she read the
night beore, when an attorney adises a client to settle because a preious
case goes against him, or when a judge adopts one precedent oer another on
the basis that it better its the present case. loweer, when it comes to
explaining why certain analogies are compelling, persuasie, or better than the
alternatie, lawyers usually draw a blank. 1hey hae little idea how to create
an analogy, what an analogy is, or why one analogy might be more eectie
than any other. 1he teaching o analogy reinorces this sense that analogies
are a mystery: the teacher suggests that the student will learn what is a good
analogy only through experience. I law proessors try to teach analogy
construction at all, they usually choose one o two approaches. 1hey might
teach the LSA1 Model` o analogies: Arm is to Leg as land is to \hat`
1he student should answer loot,` but een so, what has the student learned
At best, this model suggests that an analogy is some kind o relationship, but
it doesn`t gie much guidance beyond that. Alternatiely, the proessor might
adopt the theories o a number o legal philosophers
1
and teach analogies as a
type o rule. In this model, the student takes a case, renders the case down
into a holding, and then applies the holding to the undecided case. 1his
model has the beneit o teaching the student that analogies actually matter in
law, but it suggests that the only trick o legal analogies is to ind the
appropriate rule that explains a case. \et, as students quickly realize, cases